Illinois Fifth District Appellate Justice Randy Moore
MOUNT VERNON, ILLINOIS - A state appeals panel upheld a Jackson County jury’s verdict ordering Southern Illinois Hospital Services to pay $3.5 million to an executive who claimed he was fired due to his role as a fraud whistleblower.
Kevin Kaytor filed his wrongful termination lawsuit in March 2018 and amended his filing that June to allege his report of Medicare and Medicaid abuse and fraud led to losing his job as manager of a seven-location, 22-bed sleep center department.
Kaytor calculated his economic damages by comparing his salary and benefits at a job he secured in July 2017, administrator of the Franklin Williamson Bi-County Health Department, to what he projected he’d be earning had he stayed with SIH. Although the jury awarded less than that amount, agreeing to $291,251 instead of $411,107, it also said Kaytor was entitled to $250,000 for emotional distress and $3 million in punitive damages.
After the verdict, SIH asked Jackson County Circuit Court Judge Christy Solverson to halt the judgment or grant a new trial. It claimed one jury instruction misstated the causation standard, said three witnesses were wrongly excluded, argued Kaytor wasn’t entitled to any damages for emotional distress and argued the punitive damages were either improper or excessive
Judge Solverson denied that motion in February 2024, which led to the issue landing before the Illinois Fifth District Appellate Court. Justice James “Randy” Moore wrote the panel’s opinion, filed Oct. 1; Justices Michael McHaney and James Hackett concurred.
The panel first rejected SIH’s argument it should conduct a fresh analysis of whether facts justified punitive damages at all, then refuted the hospital’s position that such damages being submitted to a jury constituted an abuse of judicial discretion. The justices noted the company never made such a motion during the trial, nor did it “file a motion to strike or dismiss Kaytor’s request for punitive damages, did not object to plaintiff’s jury Instruction 8 on punitive damages, nor object to including punitive damages on the plaintiff’s verdict form.”
Kaytor alleged “reckless disregard” and “evil motive” for his termination, Moore wrote, establishing Judge Solverson didn’t abuse discretion regarding damages and the jury.
SIH also argued the award itself “was against the manifest weight of the evidence,” Moore wrote. But he said the panel “reviewed the lengthy trial testimony” and “having considered the evidence presented, we cannot find that the opposite conclusion was clearly evident or the finding was unreasonable, arbitrary or not based on the evidence.”
In reviewing cases SIH introduced where judges reduced punitive damages awards from juries, Moore said the difference was Illinois Supreme Court findings that the underlying allegations lacked “material evidence of an intentional, premeditated scheme.” The panel also noted that although Judge Solverson declined to reduce the jury award in a “thoughtful and well-written” posttrial motion denial order, the jury itself had already come down about $1.8 million from the total amount Kaytor sought. The panel also rejected SIH’s argument the award was so excessive as to constitute a 14th Amendment due process violation.
Regarding emotional distress, SIH argued — and the panel agreed — “Kaytor’s complaint did not set forth a claim for intentional infliction of emotional distress,” Moore wrote. But the panel pointed to its own 1988 opinion, Sloan v. Jasper County Community Unit School District 1, already decided such a claim isn’t a prerequisite for emotional damages recovery.
“Further, there are several Illinois retaliatory discharge cases since Sloan where a plaintiff has recovered for emotional distress without pleading a separate cause of action of either intentional infliction of emotional distress or negligent infliction of emotional distress,” Moore wrote. He likewise explained the already settled issue of whether a plaintiff needed to allege hospitalization or other treatment for emotional distress.
The panel said SIH was wrong to argue the jury was improperly instructed and said Judge Solverson didn’t abuse her discretion by barring three witnesses as a result of a discovery sanction. While SIH said the three witnesses “would have testified to a valid and legitimate, nondiscriminatory business reason for Kaytor’s termination,” Moore wrote, Solverson was allowed to give weight to Kaytor’s objection to the disclosure of those witnesses just one week before the trial.
“We were not provided with a record of the hearing on this issue,” Moore wrote. When SIH named the three witnesses, “they were not identified as being controlled by SIH, and no contact information was provided for these individuals. When this issue was presented to the trial court in SIH’s posttrial motion, the trial court conducted a thorough analysis setting forth the reasons for the sanction and the denial of a new trial.”
The panel again said it couldn’t agree Solverson abused her discretion and ultimately affirmed her judgment.
SIH is represented by Armstrong Teasdale, of St. Louis.
Kaytor is represented by Sedey Harper Westhoff, of St. Louis.
